The use of religious symbols on public property will remain a controversial issue. The U.S. Supreme Court has declined to take up a case to determine whether 13 memorials for fallen Utah Highway Patrol troopers violate the First Amendment.

In a 19-page dissent, Justice Clarence Thomas sums up in his opening statement why passing on this case is a problem: “Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.” Thomas then reviews the intricacies of many cases related to the Establishment Clause and concludes that they remain “impenetrable” and “incapable of coherent explanation” and that “[i]t is difficult to imagine an area of the law more in need of clarity.”

Indeed, the Supreme Court may have been able to use the case of the Utah crosses to clarify this issue for courts and policymakers nationwide, but what of the merits of the case? Was the 10th Circuit’s ruling last December correct? Is the state endorsing Christianity by locating crosses on public property next to highways?

I believe the court’s ruling was incorrect on two accounts.

First, in order for the court to consider a case, the plaintiff must allege that through some unlawful conduct he or she has been harmed in some way. The allegation in this case? The plaintiff, American Atheists Inc., argues that three of its members have had “direct personal and unwelcome contact with the crosses.” The court accepts this allegation as sufficient and concludes it is supported by the claim that one of the members has “occasionally altered [his] travel route or [has] not stopped at a particular rest stop to avoid contact with the crosses.”

This allegation seems a bit disingenuous. How “direct” and “personal” can contact be with an inanimate object sitting next to a highway? Did the crosses approach the plaintiffs and force them to become Christians? Was one of the plaintiffs truly bothered enough to alter his travel route? Has he designed his travel route to avoid seeing every religious building or symbol where he lives?

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The crosses clearly do not violate the second part of the amendment, but do they violate the second part by making a law “respecting an establishment of religion?” No. No law has been made and no religion has been established.

“To establish” means to “institute permanently,” “make firm or stable,” “introduce and cause to grow and multiply,” “bring into existence,” “put on a firm basis,” “put into a favorable position,” “gain full recognition or acceptance of,” “make a national or state institution,” or “put beyond doubt.” Only one of these definitions – “put into a favorable position” – has any bearing in this case. Do those memorial crosses put Christianity into “a favorable position”?

According to the court, the displays “have the impermissible effect of conveying to the reasonable observer that the state prefers or otherwise endorses Christianity.” However, the memorials are privately funded and each of the fallen troopers’ families consented to having them erected, with none objecting to the use of the cross. In fact, the Utah Highway Patrol Association (UHPA) said that if a family requested a symbol other than the cross, such as a Star of David, then it would oblige. The only issue, then, is whether the memorials’ location on public property favors Christianity.

To me, it seems entirely reasonable and appropriate that a memorial for highway patrol troopers who served the public and sacrificed their lives for the public good stand on public ground – overlooking the area those officers patrolled daily. The crosses do not advance Christianity or favor it, they simply honor these particular men who were likely Christian and whose families approved the use of the cross.

The court also makes quite a logical leap with the following assertion:

A Christian symbol conveys the message that there is some connection between the UHP and Christianity. This may lead the reasonable observer to fear that Christians are likely to receive preferential treatment from the UHP – both in their hiring practices and, more generally, in the treatment that people may expect to receive on Utah’s highways.

Is this fear one that a “reasonable observer” would really face? Would any reasonable person actually assume that because a cross stands along a highway or even in front of a Utah Highway Patrol building that officers would treat a person of another faith – or of no faith – differently or unfairly? The court provided no evidence that this fear or any unequal treatment of the kind exists, only speculation. Using this line of reasoning, the state should prohibit highway patrolmen from wearing a cross around their necks or a CTR ring on their fingers while on duty, which would limit their freedom of religious expression.

[pullquote]Government should not force anyone to practice any particular religion, but it should also protect the free exercise of religion for everyone.[/pullquote]The reasoning in the 10th Circuit’s decision and other similar decisions is an assault on the religious freedom of people of all faiths – a freedom that the U.S. Constitution guarantees. Government should not force anyone to practice any particular religion, but it should also protect the free exercise of religion for everyone.

Justice Anthony Kennedy got it right in a separate case when he wrote:

A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. … Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.

In the United States of America, those who want to honor a loved one who has fallen in the line of duty should be able to erect a religious symbol on public property. Any ruling to the contrary is a threat to religious freedom in the name of protecting “freedom from religion.”